Evidence
Evidence Before The Court
In Dhanhoa v The Queen[3] McHugh and Gummow JJ observed that where, on appeal, the complaint is a failure of the trial judge to give directions which were not requested at trial, the relevant ground of appeal can only be that there was a miscarriage of justice[4] and an appellant must demonstrate “… that the direction should have been given and it is ‘reasonably possible’ that a failure to direct the jury ‘may have affected the verdict.’”[5] Dhanhoa v The Queen was an appeal from the Court of Criminal Appeal of New South Wales. Section 6 of the Criminal Appeal Act 1912 (New South Wales) is in similar terms to s 668E(1) of the Code. This Court has consistently applied the principles from Dhanhoa that I have described above to appeals from Queensland Courts based on a failure of a trial judge to give a direction which was not requested at trial.[6][3](2003) 217 CLR 1.[4]Dhanhoa at [38].[5]Dhanhoa at [38].[6]R v Huston [2017] QCA 121 and R v Knight [2017] QCA 98.The evidence The complainant’s version as given in evidence-in-chief was as follows:“CROWN PROSECUTOR: So you were in the lounge room, watching videos?---Yes, we started making out a bit on the couch.When you say making out - - -?---Just having – kissing, a little bit of hands on the bum and whatnot.When you say hands on the bum, whose hands?---Mehdi’s hands on my bum.And who was kissing who?---Both kissing each other.And what happened then?---He got up to get a drink, he got a Captain Morgan and a Sprite. He also got changed into a pair of black tracksuit pants, instead of the cream jeans. He came back to the couch to drink his drink and we watched the videos for a bit longer. He had a couple more drinks – maybe two or three more and before we started making out again, we were making out a second time and he asked me if I wanted to go to the bedroom. Before I could say anything, he’d picked me up off the couch and started walking towards the room.If I could stop you there? Can you recall what time this was?---Probably about 9 o’clock.So what happened after he picked you up?---Started walking towards the room. I got down, out of his grip and he grabbed some keys from the table, at the top of the stairs, walked down to the bedroom. He unlocked the door with these keys, we walked in and he closed the door behind him, started making out again. He pulled off my jumper and then got completely undressed himself. He then pulled my pants down.What clothing were you wearing at that point?---The grey knit jumper, black singlet and a – black leggings.And then what happened?---We were fully undressed. I told him to put a condom on. He told me he didn’t. I told him, “No, seriously, you do” and he turned around and said, “No, I don’t” bef – as he was pushing me on the bed and he put his penis in my vagina and started to thrust. I – he’d pinned me, with his hands, on my arms, sort of up near my shoulders, with his weight pushing up off me.So you just indicated with your hand there, towards the top of your arm?---Yep.Continue?---He then was using his weight in that area of my arm to hold me down. My arms were beside me. I put my arms up onto his stomach as I was telling him to get off me.You indicated you put your arms on his stomach?---Yep.Were you doing anything with your arms?---I was pushing up against him, on – like, on the sides of his stomach.Were you saying anything at this point?---I was telling him to get off me.Was he saying anything in response?---No.What was he doing?---He was, eyes closed, thrusting, in his own world and then I was starting to wriggle a bit, trying to get out of his grips and he then flipped me.And how did that happen?---Kept one arm where it was, on this side and put the other hand under this shoulder and just sort of flipped.So you’re indicating to your left shoulder, he kept his hand on that shoulder?---Yes.What hand was that of his?---It would’ve been his right hand.And what did he do with his other hand?---Put it underneath my right shoulder, on the bottom side of it and flipped.Did you say anything at that point?---I don’t remember saying anything.And what happened after that?---After that, he put himself back in me. I was getting up on my hands and knees to try to crawl away and he put his hand in the back – middle of my back and pushed down against me with all his strength, pushing my hands and legs from out underneath me and continued to thrust for a bit. I told him again to stop and to get off me and he told me he wasn’t finished yet. Well, yeah, he told me he wasn’t finished yet, sorry and I told him that I couldn’t handle it and he said he wanted me to come before he did. I told him I already had. I hadn’t really, I just wanted him off me and he wasn’t listening to “No.” And then he tri – pulled out and tried to put his penis in my arse. At this point, he started fumbling around released his press – the pressure from my back to the point that I was able to get my hand around behind me and grab hold of him.And you say you grabbed hold of him? What are you referring to?---I grabbed his penis.And which hand did you use to grab his penis?---My left hand.And what did you do then?---I squeezed pretty hard. I only held for less than five seconds. Enough – when I heard he was in pain, I let go. I didn’t want to injure him; I just wanted it stopped.And where did you get that indication from?---Which indication, sorry?That he was in pain?---I could just hear he was in pain. He made, sort of, a painful noise, almost like a groan.And what did you do?---I was able to get myself up to the end of the bed, I rolled back over, onto my back, in sort of a seated position, pushed backwards, up the back of the bed.And you indicated towards the end of the bed?---Yep.Are you referring to the – which side of the bed are you referring to?---The bedhead, back towards the wall.And then what happened?---And then he knelt one knee on the end of the bed, reached up and grabbed my legs and pulled me back down. I started grabbing for the sheets that were up the top, but nothing held as such. He pulled me back down; he put himself back in me.You say he pulled you back down. How did he do that?---He grabbed my thighs and just – as he stepped his knee of the bed, pulled down with his hands.And then what happened?---And then he put himself back in me, was thrusting a bit more, flipped me again and next minute, pulled out and ejaculated on my back.You said he put himself in you. What do you - - -?---His penis in my vagina.And you indicated he ejaculated on your back?---Yes, that is correct.And what happened then?---He put his hand on my lower back and told me not to move. He went out of the room, wasn’t very long at all, he came back with a box of tissues, quickly wiped my back, left the room again. I waited a little bit, till I knew he wasn’t coming straight back and I got myself up. I got dressed, walked out to the loun – lounge room, as I was still pulling on my jumper, to go get my phone, which was still on the couch. I grabbed my phone, I text my friend GL, telling me that – get – asking her to send me a message telling me that I needed to come home early. She responded something saying, “Is that exactly what you want me to say?” I told her what I wanted her to say and she sent me a message back saying, “I’m so sorry to do this. I need to leave early. Can you please come home now.” I showed that message to Eddie[7], who had joined me back on the couch.At what point did he return to the couch?---He returned to the couch just as I’d told GL what I wanted her to say and put my phone down.And where was he and where were you positioned on the couch?---He came back in. I was still standing when he came back in. He came back in, sort of sat down closest to the door, grabbed my hand and sort of directed me force – not so much forcefully, but with intent to pull me down to the couch, just to sit down and, yeah, I was on the left-hand side of him.What happened after you showed the message?---After I showed the message, I left. I walked out the door; he followed me out. He pulled me back towards him, gave me a hug, went to kiss me again, but I turned my head. He ended up kissing my cheek, told me to let him know when I get home and that we should do it again sometime and whatnot and I told him I would. I got in the car and I left.Did you consent to having sexual intercourse with Mr Sharifi Rad?---No, I didn’t.”[8][7]The appellant used the name “Eddie”: Transcript at 1-19 l 45.[8]Transcript at 1-16 l 20 to 1-19 l 22.